Wednesday, December 16, 2009

The Goldstone Report: Don't Forget Dr. Hina Jilani

When discussing the flaws of the Goldstone Report--and the biases of the Goldstone Commision itself--little attention has been paid to Dr. Hina Jilani.

I found a discussion from last month featuring Justice Stephen Breyer--along with Dr. Hina Jilani and Beverly McLachlin, Chief Just of the Supreme Court of Canada and Gregory Craig, White House Counsel of President Obama.

You can view the video of the discussion: Law vs. Power: Who Rules? Who Makes the Rules? or download a transcript in PDF.


At one point during the discussion, Justice Breyer makes the point:
My friend Aharon Baraq, the Chief Justice of Israel takes that second approach and that approach in the sentence is the law has to work out. You cannot impose unrealistic conditions on the generals. But be careful. You're there to protect the individual rights and that's what he tries to do and its popular with nobody. But if you take that second position which I think is the right one then when I hear today the lawyers are being obstacles to sensible policy with privacy. Piracy, sorry. I don't worry about privacy. I worry about piracy. But you see that's wrong. There's something wrong there.  There's a disconnect. And the people who are writing these rules and regulations which are everywhere in the world have to understand what the actual security problems are so that they can protect the individual without hurt turning our constitution into a suicide pact. That's the problem.You give us the answer. [emphasis added]
It is interesting that Breyer, who favors the use of International Law when deciding cases, does not favor its use indiscriminately.
While Breyer addresses the issues raised by Operation Cast Lead indirectly, Dr. Jilani addresses the issue more directly:

Let me begin by saying there is absolutely no question in my mind that there is a framework that guides you to make decisions when you are conducting hostilities. And that framework very clearly lays down what is the principle of discrimination and what is the principle of proportionality between a military objective and the duty to protect civilians. In the context of what we are being told today that there is more asymmetrical warfare and it becomes difficult to make decisions or to draw guidance from international humanitarian law or from general the laws of war.
Actually, the framework is not very clear, as Lionel Beehner writes in  Israel and the Doctrine of Proportionality:

experts say the proportionality principle is open to interpretation and depends on the context. "It's always a subjective test," says Michael Newton, associate clinical professor of law at Vanderbilt University Law School.
And a Brandeis report on proportionality points out

There is much controversy over what proportionality means on the ground. Does it entail proportional amounts of force? Proportional objectives? Proportional amounts of lives lost?
The same report refers to Dr. Michael Walzer of the Princeton Institute for Advanced Study: 

One of the principles of just war theory, he reminds us, is that warfare cannot be made “morally impossible.”
One can make a similar claim about self-defense against terrorists as well.
Jilani continues:


You know I just want to make one give you one example. A few years ago I was on mission toIsrael and one of my questions to some of the people there, legislators, lawyers, even judges, was about the practices of the occupation. And the answer I repeatedly got from them was "well occupation is not illegal." That's true. But at the same  time there are laws that govern how an occupying power has to conduct itself and what responsibilities it has, not only towards the occupied territory but also towards the people in the occupied territory. On the other hand, I had the opportunity of talking to some of the armed groups, the Palestinian armed groups [INAUDIBLE ] The question with regard to their own violation of humanitarian law. And the answer I got from them was "we have a legitimate right to resist." So I give you that example to show you that everybody has their justification when they know that they violated the law yet if you look at the law that very clearly tells them what they're supposed to do.
Again, Jilani is very big on clarity--but there is a difference between clarity and being simplistic.
In her search for clarity, Dr. Jilani refers to "occupation" and "Palestinian armed groups" as if those very key issues were 'very clear' and not open to debate.
So don’t I mean, I refuse to be confused by those arguments. I'm very clear. I have looked at the law myself. I know these laws are capable of being applied to situations that we are watching now. There are some problems certainly where non state actors are involved.The question of responsibility is not moot but the question of enforceability is still an area which has to be more clearly determined. We have very imminent jurists here and I'm sure that they would agree with me that a lot of the problems that we face every day in terms of shortcomings of the law are rarely taken care of by the interpretation and proper and appropriate application of the law. I think that exercise needs to be done.
Well, at least she finally does admit some doubt...
It's very easy to say there is nothing there and you can't see it but you've got to look for it. As a human rights lawyer and a human rights defender I have very few tools in my hands. But I can't tell somebody who comes with a problem to me, like for instance a woman has a problem because women's human rights are generally not as much recognized in most jurisdictions as they should. I can't tell her to wait for us to be successful. I have to look at the law and find whatever I can for her benefit and apply it. And this is how we have been able to get landmark decisions from all jurisdictions around the world.
And it is that last statement which explains her pre-determined attitude in Gaza, where Dr. Jilani defended her full acceptance of Palestinian testimony on the grounds that
I think it'd be very cruel to not give credence to their voices.
I don't know--some might think it very cruel to force a suicide pact upon Israel.
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9 comments:

Anonymous said...

Goldstone repord is a decent document and should be respected. Most of critics I've heard from israeli side are there just because the report is cricital of their country.

Daled Amos said...

If it is such a 'decent' document, then its defenders should have no problem addressing the numerous legal and factual critiques that have been raised about the report.

As a start, Goldstone can admit they exist.
Then, he might consider actually responding to the criticisms--something he promised but has failed to do.

See Understanding The Goldstone Report

Anonymous said...

^ maybe because the critics (especially those amateurs - Jewish bloggers) are little too aggressive; they're looking at just every single name and number, in a hurry to find anything that would blacken Goldstone's name and discredit the report. I'm not saying Goldstone's report is perfect or without any mistakes. Far from that. No report is perfect. But do far, those angry critics of Goldstone didn't convince neither me nor the rest of the world. I'm not buying their BS. In fact it seems to me they're mostly fighting a war with themselves. Goldstone has a respectable and succesfull career and people from most countries in the world respect him.

take care.

Daled Amos said...

But that is the whole point, we are not talking about amateurs. Furthermore, we are talking about the content of the report.

Regardless of Goldstone's reputation, defenders of the Report claim criticism is focused on Judge Goldstone and not on the report--and this is clearly not true.

The criticisms here go directly to the content of the Report.


o Trevor Norwitz's Open Letter to Judge Goldstone

o CAMERA's A Formal Letter to Judge Goldstone

o CAMERA's The Goldstone Report: A Study in Duplicity

o Israel's Initial Response to Report of the Fact Finding Mission on Gaza

o Israel's The Operation in Gaza: Factual and Legal Aspects (Israel's analysis of the Operation itself)

No response from Goldstone's defenders.

Anonymous said...

Look, even if there's been no response so far, that doesn't mean the critics of mr Goldstone are right. Also, if mr Goldstone (who is a zionist, by the way) is a respectable and experianced person, why would he accept such a "bad" report (as the critics claim)?

One more thing: I'd rather believe NGOs and the UN reports than those directly from IDF or Israeli government. I mean, what did you expect from them - to admit their mistakes and put their own soldiers on trial? It's like asking Hamas to write a response to the Goldstone's report, which is critical of Hamas as well. Goldstone's report is different - it's objective and fair. It acussed both sides. Just like did the other NGOs reports (like AI, HRW), even Israeli ones. And that's enough for me to believe them.

Daled Amos said...

That there is no response does not mean the critics are right--merely that the facts are not getting a proper airing.

Other than Goldstone's defenders who proclaim in unison that Goldstone is a Zionist--just what is that based on.

Do a search for Sir Richard Goldstone and you'll find 17 hits--so what?

You can believe the UN--whose original mandate singled out Israel alone, and you can believe NGO's such as Human Rights Watch--which embarrasses itself with its bias and incompetence.

The fact remains that tossing out Israel's data without examination does not make any sense.

If indeed, "It's like asking Hamas to write a response to the Goldstone's report, which is critical of Hamas as well."--why does Goldstone expect them to in fact examine their own war crimes?

If you really believe that Report accuses both sides, check this out.

This is evenhanded?

And that's enough for me to believe them.

Not me, not by a long shot.

Anonymous said...

Nicole Goldstone, the daughter of Richard Goldstone, whose report on Operation Cast Lead alleged that Israel committed war crimes in Gaza, maintained on Wednesday that her father "is a Zionist and loves Israel." http://www.jpost.com/servlet/Satellite?cid=1251804583376&pagename=JPArticle%2FShowFull
And I think his daughter knows him better than anyone from us. :)

As for HRW, for me it's a similar story than in case of Goldstone. The critics (mostly jewish bloggers) attacked the ogranization and tried to discredit it. There's been some totally unfounded allegations. Mr Garlasco was a special story - it was totaly ignored that he also worked on reports critical of Hamas and Hezbollah, for instance.

Regarding Hamas, I don't know if Goldstone expect them to in fact examine their own war crimes. Perhaps it would be little naive to think so. But on the other hand, Israel will obviously do nothing about their war criminals, so the situation is pretty similar. I do know one thingh, though. There's a difference between Israel and Hamas. Hamas is not a country, it is an organization with a radical wing which members are somewhere called terrorists. Israel is a democratic state. So she should behave like one. One must be aware of that fact before asking himself if the report is evenhanded.

Daled Amos said...

Nicole Goldstone? This is supposed to be meaningful? Just how are you defining your terms???

As for HRW, I have been documenting my claims--please refrain from vague generalities and give actual examples.

But on the other hand, Israel will obviously do nothing about their war criminals

You are assuming something that has not been proven. And Israel already has been investigating, just as it has in the past.

Hamas is an organization with a radical wing? Please identify the part that is not radical. Just exactly how many parts does Hamas have?

One must be aware of that fact before asking himself if the report is evenhanded.

Nonsense. The question is a valid and necessary one on its face--as are the answers that have not been forthcoming.

Anonymous said...

Yes, Nicole Goldstone is my source for claiming that mr Goldstone is a Zionist. I believe her and he never denied her words. In fact, he even said: "I am certainly a traditional Zionist and the events surrounding the Report have not changed my views about Israel and its people at all. My grievance is with the present leadership of Israel." (http://www.thejc.com/news/world-news/21242/goldstone-i-believed-it-would-be-good-israel)

There. I think your problem is merely that you think one can not be a zionist if he criticizes Israel or doesn't like her government. Some people in Israel and in the Jewish world even accuse mr Goldstone of betraying Israel by agreeing to head the inquiry. But that kind of thinking is wrong.

I don't want to start another debate regarding HRW. Let me just say I read most of the allegations and attacks on the organization and its employers. They didn't convinced me. Sure, HRW's reports have never been perfect or without mistakes, yet I rather believe NGOs (like HRW or B'Tselem) than Israeli army or some angry bloggers.

As for Israel's own investigation, I don't think it will be fair or objective enough. Quite frankly, the only time those israelis investigation were effective was when there were actual evidence (video footage of IDf using Palestinians as human shields) so the investigator couldn't hide or deny it. On the other hand, nobody expect Hamas to carry on any kind of fair investigation of their own war crimes, either. I should add that most of countries on the world are no better than Israel, when it comes to investigate their own army or police's crimes comitted in a war.

Things like IDf's bombing of some 200 industrial factories (including the only flour-producing facility) and the bulldozing of tracts of agricultural land can hardly be understood. Mr Goldstone said they even found the evidence in respect of some of the "incidents clearly indicated an intentional targeting of civilians and civilian sites". I'm sure IDF will find an excuse for that in their own investigation. By the way, do you remember "Blackwater story" (investigation) from Iraq?

Regarding Hamas, according to wikipedia, Hamas is "Palestinian Islamic socio-political organization which includes a paramilitary force." Hamas is known for its millitary wing, but also for "its funding and management of schools, health-care clinics, mosques, youth groups, athletic clubs and day-care centers". So I guess it has many different parts.